- 1 - HC-KAR NC: 2025:KHC:44354 WP No. 19971 of 2023 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 4TH DAY OF NOVEMBER, 2025 BEFORE THE HON'BLE MR. JUSTICE S VISHWAJITH SHETTY WRIT PETITION NO. 19971 OF 2023 (GM-CPC) BETWEEN: B P PRABHAKARA, AGED ABOUT 61 YEARS, R/AT NO.308, 8TH CROSS, VENAKTESHWARA NILAYA, J.C. NAGARA, MYSURU - 570006. (THE BENEFIT OF SENIOR CITIZEN NOT CLAIMED) …PETITIONER (BY SRI C R SUBRAMANYA.,ADVOCATE) AND: 1. SRI PANDULINGA, S/O LATE JAVARAIAH, AGED ABOUT 63 YEARS, 2. V. KRISHNAMURTHY, S/O LATE JAVARAIAH, AGED ABOUT 66 YEARS, RESPONDENT NO.1 AND 2 ARE RESIDING AT NARASANNA AGRAHARA, NANJANGUDU CITY, MYSORE DISTRICT, PIN: 571301. SMT. PUTTALAKSHMI SINCE DEAD BY HER LRS 3. SRI D HUCHEGOWDA @ D.H.GOWDA, S/O LATE DODDAIAH, NOW AGED ABOUT 70 YEARS, Digitally signed by PRAMILA G V Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:44354 WP No. 19971 of 2023 4. SMT POORNIMA, W/O PANDULINGA, D/O SRI HUCHEGODA @ D.H.GOWDA, NOW AGED ABOUT 45 YEARS, ALSO AT NO.702, WARD NO.3, NARASANNA AGRAHARA, NANJANGUDU, MYSORE DISTRICT, PIN: 571301. 5. SRI UMESH H, S/O SRI HUCHEGODA @ D.H.GOWDA, NOW AGED ABOUT 42 YEARS, RESPONDENT NO.3 TO 5 ARE R/AT NO.110, 3RD MAIN ROAD, NEAR KEMPABUDHI SARAOVARA, DOBI NANJAPPA BLOCK, K.G.NAGAR, BENGALURU, PIN - 560 019. CHIKKANNA, SINCE DEAD BY HIS LRS 6. SMT. SANTHAMMA, W/O LATE CHIKKANNA, NOW AGED ABOUT 66 YEARS, 7. SMT. SHOBHA, W/O SUBBEGOWDA, D/O LATE CHIKKANNA, NOW AGED ABOUT 38 YEARS, RESIDING AT NO.274/12, 2ND CROSS, SARASWATHI COLONY, NANJANGUDU, MYSORE DISTRICT, PIN: 571031. 8. SRI JAVARAPPA, S/O LATE CHIKKANNA, NOW AGED ABOUT 35 YEARS, - 3 - HC-KAR NC: 2025:KHC:44354 WP No. 19971 of 2023 9. SMT POORNIMA, W/O LATE KARIGOWDA, D/O LATE CHIKKANNA, NOW AGED ABOUT 31 YEARS RESPONDENT NO.6,8,9 ARE RESIDING AT NO.807, MUSLIM BLOCK, GOVERNMENT BOYS HIGH SCHOOL, NARASANNA AGRAHARA, NANJANGUDU, MYSORE DISTRICT, PIN: 570301. 10. SRI RAJEGOWDA, PRESIDENT, H.H.M.B.G. CO-OPERATIVE SOCIETY LTD., LALITHA MAHAL ROAD, MYSORE PIN:570011. 11. SMT THAHIR UNNISSA, W/O SRI ABDUL RAHEEM, NOW AGED ABOUT 76 YEARS, RESIDING AT UDAYAGIRI, MYSORE, PIN: 570 019. 12. SRI K NAGARAJU, S/O SRI BALAIAH, NOW AGED ABOUT 61 YEARS, RESIDING AT KURUBARAHALLI VILLAGE, SIDDARTHNAGAR POST, MYSORE, PIN: 570011. …RESPONDENTS (BY SRI LOKESHA D.,ADVOCATE FOR R1 TO R9) THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER PASSED BY THE LEARNED PRINCIPAL SENIOR CIVIL JUDGE AND CJM AT MYSURU IN O.S.NO.682/2012 PASSED ORDER ON IA NO.15 DTD 02.03.2021 WHICH IS PRODUCED AS ANNEXURE-H. THIS PETITION, COMING ON FOR ORDERS THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE S VISHWAJITH SHETTY - 4 - HC-KAR NC: 2025:KHC:44354 WP No. 19971 of 2023 ORAL ORDER Defendant No.1 is before this Court in this Writ Petition filed under Article 227 of Constitution of India with a prayer to set-aside the order dated 02.03.2021 passed on I.A.No.15 in O.S.No.682/2012 by the Court of Senior Principal Judge and CJM at Mysuru. 2. Heard the learned counsel appearing for the parties. 3. Suit in O.S.No.682/2012 is filed by respondents No.1 to 9 herein seeking relief of declaration and possession in respect of the suit schedule property. Defendant No.1 has filed his written statement in the said suit. I.A.No.15 was filed on behalf of plaintiffs under Sections 33 and 34 of the Karnataka Stamp Act, 1957 (for short 'Act of 1957') read with Section 17(1)(A) of the Registration Act, 1908 (for short 'Act of 1908') with a prayer to impound the documents at Ex.D.32 and D.33 and issue necessary direction to defendant No.1 to pay the deficit stamp duty and penalty on the said documents. 4. Defendant No.1 had opposed the prayer made in I.A.No.15 by filing objection. The Trial Court vide order impugned dated 02.03.2021 has allowed I.A.No.15 filed in - 5 - HC-KAR NC: 2025:KHC:44354 WP No. 19971 of 2023 O.S.No.682/2012. Being aggrieved by the same, defendant No.1 is before this Court. 5. Learned counsel for the petitioner submits that since Ex.D.32 and D.33 are already marked in view of Section 35 of Act of 1957, the Court cannot impound the said documents and direct the party to pay the deficit stamp duty and penalty. In support of his arguments, he has placed reliance on the judgment passed by this Court in case of Krishna vs. Sanjeev1. He also submits that possession of the property was not handed over to defendant No.1 under agreement at Ex.D.32. He submits that Ex.D32 and D.33 are not compulsorily registerable documents and therefore he is not liable to pay any deficit stamp duty or penalty. Therefore, the Trial Court has erred in allowing the application. 6. Per contra, learned counsel appearing for the contesting respondent has argued in support of the impugned order and submits that Ex.D.32 and D.33 were marked subject to objection and therefore it is always open for the Trial Court to consider the question of payment of stamp duty on the said 1 ILR 2003 3716 - 6 - HC-KAR NC: 2025:KHC:44354 WP No. 19971 of 2023 documents at an appropriate stage. Ex.D.32 is the general power of attorney dated 24.06.2005 executed by defendant No.3 in favour of defendant No.1 and Ex.D.33 is the agreement for sale dated 24.06.2005 also executed by defendant No.3 in favour of defendant No.1 in respect of the suit schedule property. The aforesaid documents were marked subject to objection. 7. Hon'ble Supreme Court in the case of G.M.Shahul Hameed vs. Jayanthi R.Hegde2 in paragraphs No.14 and 15 has held as under: '14. The presiding officer of a court being authorised in law to receive an instrument in evidence, is bound to give effect to the mandate of sections 33 and 34 and retains the authority to impound an instrument even in the absence of any objection from any party to the proceedings. Such an absence of any objection would not clothe the presiding officer of the court with power to mechanically admit a document that is tendered for admission in evidence. The same limitation would apply even in case of an objection regarding admissibility of an instrument, owing to its insufficient stamping, being raised before a court of law. Irrespective of whether objection is raised or not, the question of admissibility has to be decided according to law. The presiding officer of a court when confronted with the question of admitting an 2 2024 INSC 493 - 7 - HC-KAR NC: 2025:KHC:44354 WP No. 19971 of 2023 instrument chargeable with duty but which is either not stamped or is insufficiently stamped ought to judicially determine it. Application of judicial mind is a sine qua non having regard to the express language of sections 33 and 34 and interpretation of pari materia provisions in the Indian Stamp Act, 1899 11 by this Court. However, once a decision on the objection is rendered – be it right or wrong – section 35 would kick in to bar any question being raised as to admissibility of the instrument on the ground that it is not duly stamped at any stage of the proceedings and the party aggrieved by alleged improper admission has to work out its remedy as provided by section 58 of the 1957 Act. 15. Profitable reference may be made to the decision of this Court in Javer Chand and others v. Pukhraj Surana (1962) 2 SCR 333. There, provisions of section 36 of the 1899 Act, which is pari materia section 35 of the 1957 Act, came up for consideration. A Bench of four Hon’ble Judges of this Court held that when a document’s admissibility is questioned due to improper stamping, it must be decided immediately when presented as evidence. The relevant paragraph is extracted hereunder: “4. *** Where a question as to the admissibility of a document is raised on the ground that it has not been stamped, or has not been properly stamped, it has to be decided then and there when the document is tendered in evidence. Once the court, rightly or wrongly, decides to admit the document in evidence, so far as the parties are concerned, the matter is closed. Section 35 is in the nature of a penal provision - 8 - HC-KAR NC: 2025:KHC:44354 WP No. 19971 of 2023 and has far-reaching effects. Parties to a litigation, where such a controversy is raised, have to be circumspect and the party challenging the admissibility of the document has to be alert to see that the document is not admitted in evidence by the court. The court has to judicially determine the matter as soon as the document is tendered in evidence and before it is marked as an exhibit in the case. The record in this case discloses the fact that the hundis were marked as Exts. P-1 and P-2 and bore the endorsement ‘admitted in evidence’ under the signature of the court. It is not, therefore, one of those cases where a document has been inadvertently admitted, without the court applying its mind to the question of its admissibility. Once a document has been marked as an exhibit in the case and the trial has proceeded all along on the footing that the document was an exhibit in the case and has been used by the parties in examination and cross- examination of their witnesses, Section 36 of the Stamp Act comes into operation. Once a document has been admitted in evidence, as aforesaid, it is not open either to the trial court itself or to a court of appeal or revision to go behind that order. Such an order is not one of those judicial orders which are liable to be reviewed or revised by the same court or a court of superior jurisdiction.” 8. Placing reliance on the judgment of the Hon'ble Supreme Court in the case of G.M.Shahul Hameed supra, this - 9 - HC-KAR NC: 2025:KHC:44354 WP No. 19971 of 2023 Court in Sri. C.P.Selvaraj vs. Sri.K.M.Rajendran3 has observed that if only a document is admitted in evidence upon a judicial determination, Section 35 of the Act of 1957 gets attracted, otherwise it is always open for the Court to exercise its inherent powers to achieve justice and prevent abuse of its process. 9. The judgment in the case of Krishna vs. Sanjeev supra on which reliance has been placed by the learned counsel for the petitioner arose out of an order where the Court had directed the plaintiff to pay the deficit stamp duty and penalty on the documents which were already marked and in paragraph No.16 of the said order, it is has been observed as follows: "Admittedly, in the instant case, as rightly observed by the learned Trial Judge, the plaintiff has not entered the witness box to tender the disputed document in the examination-in chief. These documents are marked as per Ex.P1 to P4. The learned Trial Judge while accepting the accepting the affidavit acting on the contents of the affidavit, has marked the said documents thus preventing the defendant an opportunity to raise objections regarding the admissibility of the said document, thus taking away a valuable right accrued to him under sections 34 and 35 of 3 W.P.No.2383/2023 D.D.No.13.10.2025 - 10 - HC-KAR NC: 2025:KHC:44354 WP No. 19971 of 2023 the Karnataka Stamp Act. When this fact is brought to the notice of the Court, realizing the mistake, the Court in its discretion thought it fit to recall the said order in order to do justice between the parties, which cannot be found fault with. Under these circumstances, I do not find any infirmity in the impugned order, which calls for interference. Accordingly, the Writ Petition is rejected." 10. The said judgment does not support the contention urged by the learned counsel for the petitioner that the Courts have no power to impound the documents and direct the party to pay the deficit stamp duty and penalty after the documents are marked in view of Section 35 of the Act of 1957. 11. Learned counsel for the petitioner has also raised a contention that the possession of the property was not handed over to the petitioner either under Ex.D.32 or under Ex.D.33 and therefore he is not liable to pay stamp duty on the same. The Trial Court has impounded the aforesaid documents vide the order impugned and has held that the said documents are liable for payment of deficit stamp duty and penalty. However, the deficit stamp duty and penalty payable is not calculated by the Court and on the other hand, office is directed to calculate the stamp duty and penalty payable. It is found that under the - 11 - HC-KAR NC: 2025:KHC:44354 WP No. 19971 of 2023 general power of attorney or under the agreement for sale the possession of the property is handed over, then the party is liable to pay the stamp duty as provided under Article 5(e)(i) of the Act of 1957 and if the possession is not handed over, then he becomes liable to pay the stamp duty as provided under Article 5(e)(ii) of the Act of 1957. 12. For the purpose of exercising powers under Sections 33 and 34 of the Act of 1957, the question that needs to be considered by the Court or the Authority before whom such document is produced is whether the said document is duly stamped as per the provision of Act of 1957 and at that stage it is not necessary to consider the question that arises under Section 17 of the Indian Registration Act, 1908. Section 17 of the Indian Registration Act arises for consideration when it comes to admissibility of a document as evidence and not for the purpose of collecting deficit stamp duty. 13. Under these circumstances, I do not find any merit in the Writ Petition and accordingly, the same stands dismissed. - 12 - HC-KAR NC: 2025:KHC:44354 WP No. 19971 of 2023 14. In view of the disposal of the main petition, pending applications do not survive for consideration, accordingly, the same stands disposed of. Sd/- (S VISHWAJITH SHETTY) JUDGE GVP List No.: 1 Sl No.: 4